Citation Nr: 1717223
Decision Date: 05/18/17 Archive Date: 06/05/17
DOCKET NO. 13-09 522 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for anemia.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans Services
ATTORNEY FOR THE BOARD
T. Jiggetts, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1999 to December 2010 in the U.S. Air Force.
This appeal is before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in part, granted service connection for anemia and assigned a 0 percent rating effective December 28, 2010.
During the pendency of the appeal, in a September 2015 rating decision, the RO granted a higher initial rating of 10 percent for anemia, effective December 28, 2010.
In January 2016, the Board remanded the case for further development, finding that the medical evidence of record was inadequate for rating purposes for anemia. The claim has now been returned to the Board for further action.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Board again finds that additional development is warranted in this case before a decision may be rendered. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet.App. 268, 271 (1998).
In the January 2016 remand, the Board noted that disability ratings for anemia are based upon hemoglobin levels that are measured as "gm/ml" in 38 C.F.R. § 4.117, Diagnostic Code 7700 (2016), yet the Veteran's hemoglobin levels were reported in terms of "Lg/dL" or had no units specified in her VA treatment records and VA examinations. As such, the Board determined that the hemoglobin levels were presented in a manner that could not be applied to the rating criteria. The Board specifically requested that the AOJ make available the claims file, including a copy of the remand, to a VA examiner; that the VA examiner review the hemoglobin level results in the Veteran's claim file; and if possible, that the VA examiner interpret these results and convert them into a format that may be applied to the rating criteria, or provide an explanation as to how the hemoglobin levels measured in "Lg/dL" can be calculated to "gm/ml."
In response to the Board's remand, a VA examiner reviewed the claims file and prepared a written report in June 2016. Unfortunately, as it relates specifically to the Veteran's hemoglobin levels, the examiner stated in the report: "Recent lab work thru the VA done in Feb[ruary] 2016 showed a normal hematocrit and a minimally low hemoglobin of 11.7 grams/deciliter or 11.7 grams/1000ml" (emphasis added). Once again, these measurements are not in accordance with the ratios used in the rating criteria for anemia, as expressed in 38 C.F.R. § 4.117, Diagnostic Code 7700, which measures hemoglobin as follows:
A 100 percent rating is for anemia is warranted when the hemoglobin is 5 gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest.
A 50 percent rating is for anemia is warranted when the hemoglobin is 7 gm/100ml or less, with findings such as dyspnea on mild exertion, cardimegaly, tachycardia or syncope.
A 30 percent rating for anemia is warranted when the hemoglobin is 8 gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath.
A 10 percent rating is warranted when the hemoglobin is 10 gm/100ml or less with findings such as weakness, easy fatigability or headaches.
As such, the Veteran's hemoglobin levels need to be measured in "gm/100ml" as expressed in the rating criteria above, not in "gm/1000ml" as expressed in the June 2016 VA examiner's report. It is quite possible that this was merely a typographical error by the VA examiner, but clarification is needed to ensure that the readings are accurate. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (establishing that the Board cannot substitute its own medical opinion for those of qualified medical professionals).
Once the VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v Nicholson, 21 Vet. App. 303 (2007).
Accordingly, the case is REMANDED for the following action:
1. The AOJ shall refer the Veteran's claims file, and a copy of this remand, to a qualified VA medical professional who shall review the hemoglobin levels in the Veteran's claim file; and, if possible, convert these hemoglobin levels into the format used in the rating criteria as expressed above in "gm/100ml" (not gm/1000ml). If the hemoglobin results cannot be converted into the format used in the rating criteria, the examiner shall state that and provide the rationale therefore.
(If the reviewer determines that another examination is necessary to determine the requested hemoglobin levels, an examination should be scheduled and the Veteran notified that failure to report to any scheduled examination, without good cause, could result in a denial of her claim. See 38 C.F.R. § 3.655(b) (2016).)
2. After completing the above, the AOJ shall readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).